Permissible Lay Testimony - So-Called “Treating Physician” Doctrine

Lay Testimony

 

Lay Witness

 

Expert Testimony

 

Permissible Lay Testimony

 

So-Called “Treating Physician” Doctrine

 

Medical Report

 

Evidence

 

Federal Law

 

 

 

 

9 There is some gray area between lay and expert testimony when the lay witness has expertise and used that expertise to make first-hand observations. For example, in Henderson, we noted that a treating physician’s “diagnosis of the injury itself, that [the victim’s] jaw was fractured, would be permissible lay testimony.” 409 F.3d at 1300. But we have not held that any treating physician can testify as a lay witness about any diagnosis she made while treating the patient. The plain language of Federal Rule of Evidence 701(c) prohibits lay opinions “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. A diagnosis requiring more complex diagnostic reasoning than that required to notice a broken jaw may fall under Rule 701(c)’s prohibition. See Stephen A. Saltzburg et al., 3 Federal Rules of Evidence Manual § 701.02[7] (Matthew Bender 12th ed.) (“When the [treating] physician testifies that the plaintiff was coughing and running a fever, this is lay witness testimony governed by Rule 701. However, if the physician also testifies that he diagnosed the patient as having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chemical, then this is testimony based on scientific, technical, or other specialized knowledge and must be qualified under Rule 702.”) (citing Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317–18 (11th Cir. 2011)). We also note that the Tenth Circuit cases we cited for the so-called “treating physician” doctrine, under which “[a] treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party,” Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir. 1999), both predated the 2000 amendment to Rule 701. The other case was Weese v. Schukman, 98 F.3d 542 (10th Cir. 1996). In Williams v. Mast Biosurgery USA, we summarized “our discussion” of the treating physician doctrine in Henderson as follows: “[W]hen a treating physician’s testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony, and it must comply with the requirements of Rule 702.” 644 F.3d at 1317–18. We also emphasized that “[t]he testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court,” id. at 1316, and “that trial courts [must] be vigilant in ensuring that the reliability requirements set forth in Rule 702” are not “‘evaded through the simple expedient of proffering an expert in lay witness clothing.’” Id. at 1317 (quoting Henderson, 409 F.3d at 1300 (quoting Fed. R. Evid. 701 advisory committee’s note to 2000 amendment)). Here, the issue is what would have happened if the My Lady had a captain, a hypothetical that McCall cannot speak to as a lay witness. In an appropriate case, we should clarify when a lay witness goes too far in discussing observations that he made using his expertise. (Fn. 9).

 

 

 

 

(U.S. Court of Appeals for the Eleventh Circuit, June 23, 2023, Travelers Property Casualty Company of America v. Ocean Reef Charters LLC, Docket No. 21-14509, Publish)